When you find yourself in the position of needing the courts to assist you in settling a dispute, one way to proceed is to file a Statement of Claim. A statement of claim is a filing with the court that identifies the legal issue that needs to be resolved and the parties involved.
The first step is to secure a statement of claim form either online or from the court. You then need to fill out all of the required information on the form. The form can be filled out either by hand, using your computer, or going to the New South Wales Online Registry and filling it out online at;
https://onlineregistry.lawlink.nsw.gov.au/content/
The form will require that you have the following information;
- Defendants name and address
- Pertinent information about the details of the claim including the dates and events surrounding the issues
- The damages incurred, monetary or otherwise
- The relief you are seeking
- Address of the court where you are filing the claim
Once you have completed these steps, you will need to file your form with the court. To file the form, you will need to present the court with the original and a copy. The court will keep the original and stamp your copy. You will need to make copies of the stamped form and serve one copy on the defendant, and possibly a copy on their attorney if they have one. There will be a filing fee. The amount will depend upon who you are filing the claim against. If you cannot afford the filing fee, you can request the court waive it for financial hardship reasons.
Now you must serve the defendant with a copy of the filed form. The form must be served on the defendant named in the statement of claim. The defendant can be an;
1. Individual
2. Corporation
3. Business
4. Partnership
Outside of NSW
Defendants Attorney; if you are aware of the defendant having an attorney, you can inquire as to whether the attorney is accepting service for the defendant. If they are, you can serve the statement of claim on the attorney, rather than the defendant.
The manner in which you serve the defendant can take a couple of different forms. You will have to decide if you want to serve it on the defendant yourself, or ask another to serve it for you (such as a private process server), or ask the court to post it for you.
Second, the manner of service can depend upon who the defendant is. If the defendant is an individual person, then service can take place in one of the following way;
1. In person
2. Leaving the statement of claim in the presence of the defendant with an explanation
3. At the defendant’s home address with someone over the age of 16
4. At the defendant’s place of employment
If the defendant is a corporation or business, you can serve the business owner or director of the company. You can also serve the statement of claim on the corporation’s business address. If it is a business or a partnership, you can serve the business owner, one of the partners, or you can post the statement of claim the business or partnerships address.
In the event that you are serving a party outside of NSW Australia, you will need to include the “Service in Australia but outside of NSW” in your statement of complaint.
On occasion a person or entity will try to avoid being served a statement of claim. If this should occur, you can seek assistance from the court by showing proof that the defendant has been intentionally avoiding being served. The court will then provide you with acceptable alternatives to the service methods you have been using.
Finally, once you have served your statement of claim, you must fill out an affidavit confirming the same. The affidavit will attest to the date, time, place and person upon whom the statement of claim was served. The court will need a copy of the affidavit of service, so be sure to have one available for them.
After filing and service, the defendant has the opportunity to respond to the statement of claim. The defendant may raise defenses to the claim. At this point the claim will continue to move forward. The options for proceeding will include attempting to settle the claim via negotiations or mediation or moving on to a hearing or a trial.
If the parties are able to settle the case prior to needing to go to court for a series of hearings or a trial, the claim can be withdrawn and a settlement agreement can be entered into. If not, the parties can proceed to seek the courts assistance by means of hearings and/or a trial.
At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. We specialise in a range of law matters. From a bankruptcy lawyer to superannuation lawyers, to a litigation lawyer Sydney residents can trust, we have an experienced attorney to help you always. Call us at your earliest convenience to schedule a consultation at 1800 770 780.